Recent Cases, CONSTITUTIONAL LAW — FIRST AMENDMENT — FOURTH CIRCUIT HOLDS THAT REPUBLISHING SOCIAL SECURITY NUMBERS GLEANED FROM ONLINE PUBLIC RECORDS IS PROTECTED SPEECH. — Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010).
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Published in Volume 124 of the Harvard Law Review.
Abstract
With the advent of the internet, states like Virginia have placed many public records online, causing concern that widespread access to these records may “increasingly pos[e] a serious threat to privacy in the Information Age.” Recently, in Ostergren v. Cuccinelli, the Fourth Circuit held that a Virginia statute prohibiting the posting of records displaying Social Security Numbers (SSNs) gleaned from a government-run internet database violated an individual’s First Amendment right to free speech. The court indicated that — because the case involved a conception of privacy based on control rather than on secrecy and the government was not responsible for the initial dis-closure of information — a new narrow tailoring test ought to be adopted. On its face, the narrow tailoring analysis used in Ostergren represents a departure from the test applied in precedent. However, it is difficult to determine whether the differences between the old and new tests are significant since the Fourth Circuit’s articulation in Ostergren is unclear in two critical respects — first, it fails to clearly articulate the contours of the new analysis, and second, it gives little guidance regarding the application of this analysis. As a consequence, the test could lead to confusion among both those seeking to comply with and those attempting to apply the new narrow tailoring require-ments.